BEFORE PATTERSON, DAN LEE AND ROBERTSON
DAN LEE, JUSTICE, FOR THE COURT
Robert E. Lee was tried and convicted in the Circuit Court of Warren County for the sale and transfer of a controlled substance, phenmetrazine - sold under the trade name" Preludin. "Lee was sentenced to and is currently serving a term of fifteen (15) years in the custody of the Mississippi Department of Corrections.
From his conviction and sentence, Lee appeals and makes the following assignment of error:
The testimony of third parties who were not present during a conversation which was electronically transmitted without the knowledge or consent of the appellant and without the issuance of a search warrant should not have been admitted into evidence.
On February 27, 1984, Robert Lee sold four tablets of phenmetrazine to Eunice Combs for $100.00. Unbeknownst to Lee, Mr. Combs was working at that time as a confidential informer for the Mississippi Bureau of Narcotics. Also, Combs was wearing a concealed audio transmitter that evening which allowed several police officers to monitor the particulars of the transaction. No search warrant had been issued in connection with this action. It is the admission into evidence of the testimony of those officers which forms the basis of this appeal.
Sometime prior to the evening of February 27, 1984,
Robert Lee and Eunice Combs had made arrangements for Combs to purchase 100 phenmetrazine tablets from Lee for $2,000.00. Combs was ostensibly to be making the purchase for a female friend, Angela Lee - actually an agent of the Mississippi Bureau of Narcotics.
Pursuant to plan, at approximately 7:15 p.m. on February 27, 1984, Combs rode with Angela Lee to Robert Lee's home in Vicksburg in order to obtain the pills. Angela Lee remained in the automobile some distance from Robert Lee's home while Combs approached and entered the residence. Angela Lee was able to listen to the sounds being broadcast by the transmitter concealed on Combs's body. Simultaneously, other bureau agents, Warren County Sheriff Officers and Vicksburg police officers also were able to monitor the transmission from nearby seclusion.
After Combs arrived at Robert Lee's residence, Lee's wife informed him that her husband had gone to the store. She then invited Combs into the house. Robert Lee returned only moments later.
Robert Lee informed Combs that the 100 tablets would not be available until the following day. However, Lee did indicate that he had four pills readily available at a price of $25.00 each.
Combs returned to Agent Angela Lee and ascertained that they would proceed with the purchase. Angela Lee gave Eunice Combs a one hundred dollar bill with which he was to pay for the pills. Combs returned to Robert Lee's house and consummated the transaction. Subsequently the four pills were turned over to Agent Lee.
Robert Lee was arrested two or three days later. The one hundred dollar bill used to purchase the drugs was never recovered.
At trial, in addition to Eunice Combs, two Mississippi Bureau of Narcotics officers and a Vicksburg police officer were allowed to testify concerning the transaction and conversation between Robert Lee and Eunice Combs which took place in Robert Lee's home on February 27, 1984. The testimony of the officers should have been excluded, Lee asserts, as it was the result of impermissible search and violative of his justifiable and constitutionally protected expectation of privacy. Appellant Lee bases his argument specifically on the Fourth Amendment to the U.S. Constitution and Section 23 of the Mississippi Constitution.
In On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967, 96 L.Ed. 1270 (1952), reh. den. 344 U.S. 848, 73 S. Ct. 5, 97 L.Ed. 659 (1952), testimony of a government agent was deemed admissible in a federal narcotics case. That testimony pertained to damaging admissions made by the accused during a conversation which had taken place on his business premises. The government agent had been able to overhear the conversation via a radio transmitter concealed on the ...